Judge’s Decision Striking NSA Program Will Not Stand By Andrew C. McCarthy

Here at Ordered Liberty in late July, I opined that the national-security right was losing the debate over the National Security Agency’s controversial telephony “metadata” program. On Monday, a federal district judge in Washington ruled that the program violates the Fourth Amendment and must be dismantled. The decision, naturally, prompted standing ovations from our counter-counter-terrorism cognoscenti. The applause will fade rapidly.

Judge Richard Leon’s 68-page opinion is lawless – long on populist vent, short on jurisprudence. It is likely to have no substantive effect: Leon stayed his ruling until it can be reviewed by the D.C. Circuit Court, which shouldn’t need more than a nanosecond to reverse it. That is not because the appellate judges will be unsympathetic to the concerns that animate Judge Leon. It is because lower federal courts are honor-bound to follow controlling Supreme Court precedents, a duty the D.C. Circuit is apt to take more seriously than did Judge Leon.

Still, the fact that Leon was moved to rule as he did – and, in particular, to credit the NSA program with little if any material contribution to the prevention of terrorist atrocities – powerfully affirms what we posited here months ago: national-security conservatives, who dominated counterterrorism policy in the decade after the 9/11 attacks, are now losing the policy debate in the court of public opinion. In the end, that is the court that matters.

Metadata Myths

As Judge Leon’s opinion outlines, “metadata” is information about our telephone communications but not the content of those communications. Significantly, the metadata collected and stored by the NSA doesnot include identifying details, such as the names and addresses of the interlocutors. Essentially, the government is collecting the phone numbers involved in, and the duration of, the communications. The purpose is to connect the phone numbers and calling patterns of suspected foreign terrorists with phone numbers and calling patterns used in this country. Had this procedure been in effect before 9/11, it might have tipped off investigators, say, that overseas phone numbers used by al Qaeda emirs like Khalid Sheikh Mohammed were in contact with U.S. phone numbers that could, by further investigation, be connected to Mohamed Atta & Co.

The main point is that, contrary to all the shrieking about “domestic spying” and how the NSA is watching your every move, only your number is in the NSA’s database, not you.

Government Misrepresentations Anger the Judges

To be sure, we should assume that phone usage information of everyone in the country is being collected. On that score, Judge Leon was understandably miffed by the Obama Justice Department’s disingenuous suggestion to the contrary.

Eric Holder’s minions contended that Verizon Wireless customers lacked standing to challenge the program because the government had not previously owned up to collecting records from the company. As Judge Leon pointed out, however, the government’s justification for the NSA program is that it must gather in one government database all telephony records collected from all the different provider networks.

The idea is that if the telecoms kept their own records rather than turning them over to the NSA, the records (a) would not be searchable with the same rapid efficiency and (b) could be prematurely destroyed (since the companies do not have the same incentive as government investigators to store the records for years on end). That of course is true … but if the whole point is to collect all the metadata in one place and ensure full coverage of the potential terrorist-communication universe, it is grossly misleading to suggest, as Justice’s standing claim did, that perhaps the government had neglected to include Verizon Wireless and its tens of millions of customers. Judge Leon was not amused, exclaiming with an exasperation rarely expressed in court opinions: “Candor of this type defies common sense and does not exactly inspire confidence!”

Nor was this the only instance of government legerdemain, a fact that, in a time of epic Obamacare mendacity and incompetence, clearly piqued the court more than it ordinarily might have. Judge Leon recounted the 2009 findings by Judge Reggie Walton of the Foreign Intelligence Surveillance Court (FISC) – the tribunal created by Congress in 1978 to monitor executive intelligence gathering activities in the U.S. – that the government had engaged in “systematic noncompliance” with program safeguards (known as “minimization procedures”). Judge Walton also concluded that government officials had repeatedly made misrepresentations to the FISC judges. Subsequently, yet another noncompliance episode impelled FISC Chief Judge John Bates to write in 2011 that

the Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

Now, in the greater scheme of things, the number of irregularities, good faith and otherwise, affected only a minute fraction of the lawful collection effort – a point the government finds tough to make in its defense since it highlights the hugely unpopular fact that records relating to hundreds of millions of Americans are being collected. It is also worth underscoring that the government’s misdeeds have been caught precisely because the NSA program is designed to be carefully monitored by non-executive branch officials – in stark contrast to other executive branch endeavors (e.g., Obamacare, IRS harassment of conservative groups, Fast & Furious, and providing security for our troops and diplomats overseas) that have been tainted by abuses of power.

Still, while the public does not expect any government program to run perfectly, problems with the NSA program are bound to be magnified. Metadata collection is like a reverse Obamacare: “covering every American” is deeply unpopular in theory though vastly inconsequential in practice. Moreover, because the NSA program began under Bush, there is no inclination in the Obama administration to defend it aggressively. In fact, the administration teems with lawyers who fought the program in the Bush years and don’t like it any better now. No surprise then that, as the Wall Street Journal’s editors detailed on Tuesday, a special advisory panel handpicked by the president apparently recommends gutting the program.

Furthermore, in another Obamacare contrast, people do not feel powerless to oppose the NSA program. A coalition of leftists and libertarians has already come tantalizingly close to passing legislation to undermine it in the House. Without a vigorous White House defense – assuming arguendo that our widely distrusted president would still be capable of mounting a convincing defense of a government program if he were so inclined – the NSA effort is living on borrowed time.

Flouting the Supreme Court’s Controlling Case

None of that excuses Judge Leon’s lawlessness.

The judge concluded that the NSA’s amassing and highly regulated inquiries of metadata violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. This flies in the face of controlling Supreme Court precedent. As discussed here in July, in its 1979 ruling in Smith v. Maryland, the high court held that records of telephone usage – again, the details about, but not the content of, communications – do not implicate the Fourth Amendment. If the Fourth Amendment is not implicated, then the government’s collection and perusal of these records does not violate the Constitution, case closed.

When there is a controlling Supreme Court ruling on point, a district judge’s duty is to follow it. That cannot be a contestable principle; otherwise, we invite anarchy.

Think for a moment about judicial confirmation hearings. Pro-abortion Democrats routinely elicit from pro-life nominees a commitment to follow Roe v. Wade, regardless of the nominee’s legal and moral objections to it, because it is binding Supreme Court precedent and thus the law of the land. The foundation of the rule of law is not just that the executive branch must follow valid congressional statutes; it also requires that inferior courts adhere to the rulings of superior courts, even if the lower court judge believes those rulings are flawed. In the judicial branch, only the Supreme Court has the authority to overturn Supreme Court rulings. Judge Leon has no such authority – and he well knows it.

A Telecom’s Records Are Not Your “Person, House, Papers, Or Effects”

Leon’s ruling is profoundly ill-conceived. To say that he flouted a controlling Supreme Court precedent is not the half of it.

Leon concedes that the plaintiffs’ challenge to the NSA program is an “expectation of privacy” case, not an “intrusion on a constitutionally protected area” case. This inches upon the stubborn fact I’ve repeatedly raised – a fact dismaying to libertarians posing as faithful constitutionalists: the Fourth Amendment, as originally understood, does not protect anyone’s abstract “expectation of privacy.” Instead, it states quite concretely that the American people have a right to be secure against unreasonable searches and seizures “in their persons, houses, papers, and effects” (emphasis added).

Persons, houses, papers, and effects are the four “constitutionally protected areas.” There are no others. Like it or not, the collection and perusal of business records that are not your property – that are actually the property of your telephone service provider, even though they pertain to your usage of the service – are in no way a search or seizure of your person, house, papers or effects.

Anyone claiming to be a “constitutional conservative” should admit that, if we were dealing with the original Fourth Amendment, the case would be over. The reason it is not is “expectation of privacy,” a progressive doctrine the Supreme Court conjured up in the 1960s. Eventually, it dramatically expanded the Fourth Amendment’s carapace. No longer would courts merely enforce from the objective concept of trespass against private property; now the Constitution would be said to reflect the evolving, eccentric, and often contradictory whims of judges about what aspects of life ought to be private.

Here, it is necessary to pause and add that faithful constitutionalists freely concede there is nothing wrong with protecting our legitimate expectations of privacy from a prying government as they evolve with time and technology. To the contrary, it is vital to liberty that those expectations be protected. In our constitutional system, however, that protection is supposed to be added by the people’s representatives in Congress. The role of the judiciary is to safeguard the constitutional guarantee – to protect our persons, houses, papers, and effects from unreasonable searches and seizures. It is not to make up a new Fourth Amendment as we go along, under the guise of an “expectation of privacy” harbored by some supposedly objective person (namely, the judge who happens to catch the case).

The NSA program is a creature of statute that addresses privacy concerns which, while entirely legitimate, are not constitutionally protected. It permits the collection of information but imposes safeguards that severely limit what the government may do with that information. Reasonable minds can and do differ on whether those privacy safeguards are adequate. But if they are to be modified – or if the program is to be scrapped because its security benefits are outweighed by its privacy costs – that ought to be done by Congress, not by judges pretending that the Fourth Amendment says something it does not.

Judge Leon’s Sleight of Hand

Judge Leon claims his conclusion that the NSA’s metadata collection violates the Fourth Amendment is supported by the Supreme Court’s 2012 decision in United States v. Jones. He could not be more wrong.

Jones involved the surveillance by GPS tracking device, without a valid warrant, of a vehicle’s movements for nearly a month. In holding that the surveillance in Jones violated the Constitution, the very first point Justice Antonin Scalia’s majority opinion makes is: “It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” That is, Jones is a “constitutionally protected area” case. Contrary to the NSA metadata case before Judge Leon, Jones does not rely on judicial suppositions about “expectation of privacy” to implicate the Fourth Amendment.

Judge Leon attempts to sidestep this inconvenience by mining two of the concurring opinions in Jones (by Justices Sotomayor and Alito) as if they echoed the high court’s rationale. But of course, they do not – they are concurrences precisely because they do not reflect the opinion of the Court’s majority.

“Expectation of privacy” is a judicially legislated add-on to the original Fourth Amendment. It is rooted in the concurring opinion of Justice John Marshall Harlan in the 1967 case of Katz v. United States. (Unlike the just discussed concurrences in Jones, Justice Harlan’s Katz concurrence is authoritative because it was adopted by Supreme Court majorities in subsequent cases.)

My point here is not to quibble with “expectation of privacy.” Like many judge-made doctrines, “expectation of privacy” is a jurisprudential fact of life even if it does not reflect the Fourth Amendment as originally understood. My contention, instead, is: If you are going to hang your hat on a doctrine manufactured by the Supreme Court, you have to accept the limitations the Supreme Court has put on it. On the matter of metadata, the Supreme Court unambiguously ruled in Smith v. Maryland that there is no constitutionally cognizable expectation of privacy in phone number subscriber information, phone numbers dialed, and the duration of calls. A district judge may not like Smith v. Maryland, but he is obliged to follow it.

Judge Leon flouted this obligation. He endeavored to camouflage this brute fact with a couple of populist flourishes. Leon first contended that the “threshold question” he was called on to answer was:

[W]hether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets?

This would be a fine argument if Leon were a congressman seeking to amend the Patriot Act. As a legal argument, it is nonsense.

The Supreme Court has already held that there is no reasonable expectation of privacy in metadata. It is black letter Fourth Amendment law that a person may not enforce another person’s Fourth Amendment rights, so the fact that the government is collecting metadata for “hundreds of millions of other citizens” is irrelevant to the plaintiffs’ Fourth Amendment claim. The fact that the government acts “without any particularized suspicion of wrongdoing” and “without prior judicial approval” only matters if the thing it is searching or seizing is protected by the Fourth Amendment. Metadata is not – to repeat: (a) it is not within the four categories set forth in the amendment, and (b) the Supreme Court squarely held in Smith that there is no expectation of privacy in it. (As I’ve noted before, when I was a prosecutor, I did not need a particularized suspicion of wrongdoing or a judge’s permission to look up a number in the phone book – the information therein is not constitutionally protected.)

The judge next purported to distinguish Smith as merely deciding that the installation of a pen register did not constitute a “search” under the Fourth Amendment. (A pen register is a device attached to a phone line that records numbers dialed, numbers dialing in, and the duration of calls.) This hair-splitting gets him nowhere: what made the installation not a search was the fact that there was no trespass on the target’s property and no expectation of privacy in metadata. Exactly the situation obtains in the NSA case.

Finally, unable to pound the law, Judge Leon pounded the table. He posed a rhetorical question that surely wowed them at the New York Times but won’t sway a conscientious appellate court:

When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.

Actually, the answer, unfortunately for Judge Leon, is when the Supreme Court says so. And if you think I’m wrong about that, imagine what our friends at the Times would say if a district judge instead asked:

When do present-day circumstances – the evolution of medicine’s life-preserving technology, our knowledge of fetal development and fetal pain, and the increasingly obvious humanity of the unborn child from the earliest stages – become so thoroughly unlike those considered by the Supreme Court forty years ago that a precedent like Roe simply does not apply?

Somehow, I suspect the judge posing that question would not be a candidate for this month’s Law Journal centerfold.

Conclusion

The viability of the NSA’s metadata program hinges on questions of policy, not law. Does it materially improve our security from terrorist attacks? Even if it does, should a government that notoriously abuses its powers be trusted with this one – are there in place enough effective safeguards, independent of the executive branch, that we should tolerate the immense potential for abuse?

I happen to believe the answer to both questions is yes, but that is beside the point. The Obama administration has failed to give compelling, affirmative answers to these questions. Without effective presidential leadership that inspires public confidence and assuages public fears of governmental abuse, the program is likely to be neutered. If that happens, it will be tragic – we will be much more vulnerable to attack and we will have achieved very little in the way of real privacy protection. But at least it will be our choice – Congress and the president legitimately changing the law to reflect public sentiment.

That is the responsible, accountable way to change the law. Asking the courts to do our heavy lifting for us by rewriting the Constitution is not.